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UN Committee Urges Iran to Comply with their International Obligations


IRI Delgation CRC Review  Jan 2015
by
Insight Iran
12:06 PM GMT
February 5th, 2016
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UN Committee Urges Iran to Comply with their International Obligations

Following a review of the situation of children in Iran, the UN Committee on the Rights of the Child (CRC) has published its concluding observations on the combined third and fourth periodic reports of the Islamic Republic of Iran (IRI). The report criticises the IRI in quite a few number of areas where national laws and practices fail to comply with international standards in relation to children’s rights. See the full report here.

Definition of the child, for instance, has been a major area of concern for the civil society and the Committee has taken a strong position on this matter. In a detailed report of February 2015, Insight Iran had submitted to the Committee that the age of puberty under Islamic Shari’a is still the definitive criterion for criminal responsibility and varies for boys and girls. It allows girls as young as 8 years and 9 months of age and boys of 14 years and 7 months to be held criminally responsible. This clearly is a very “low” and “discriminatory” standard, particularly against girls.

The Committee has raised serious concerns that despite its previous recommendations, the age of majority in Iran remains set at pre-defined ages of puberty for girls at 9 and for boys at 15 lunar years which results in depriving girls and boys above these ages from the protection under the Convention.

The Committee has also expressed grave concern about the persisting discrimination against girls in the IRI’s legislation and in practice in many aspects of life, including the discriminatory treatment of girls in family relations, criminal justice system, and compensation for physical injury, among others. Insight Iran had raised the issue of discrimination between boys and girls in various areas including compensation for bodily injuries.

Similarly, the Committee is deeply concerned about the law age of marriage in Iran (13 years for girls and 15 years for boys) and emphasised that it gravely violates rights under the Convention and places children, in particular girls at risk of forced and early marriages with irreversible consequences on their physical and mental health and development.

The Committee has urged the IRI to revise as a matter of urgency and priority its legislation to ensure that all persons below the age of 18 years, without exceptions, are considered as children and provided with all rights under the Convention. The Committee also urges the IRI to further increase the minimum age for marriage for both girls and boys to 18 years, and to take all necessary measures to eliminate child marriages in line with the IRI’s obligations under the Convention.

Insight Iran had submitted to the Committee that article 301 combined with article 612 of the Islamic Penal Code (2013), provides for lighter punishment if a murder is committed by a father or a paternal grandfather of the victim, more often in the name of so called “honour”. In such cases, judges have a full discretion and can even decide to release the perpetrator without any punishment paving a way for total impunity for killing one’s child.

The Committee has strongly urged the IRI to repeal article 301 of the Islamic Penal Code, and ensure that all perpetrators of murders committed in the name of so-called “honour” receive penalties commensurate with the gravity of their crimes.

Under article 91 of the Islamic Penal Code of 2013, in special conditions, children below the age of 18 years who have been sentenced to hudud and qisas punishments could be granted retrial and exemption from hudud and qisas punishments. However, Insight Iran had raised concern that such exemptions are under full discretion of judges who are allowed, but not obliged to seek forensic expert opinion.

The Committee has expressed serious concern about this issue and that several persons have been re-sentenced to death following such re-trials. The Committee deplores that the IRI continues to execute children and those who have committed a crime while under 18 years of age, despite its previous recommendations and numerous criticisms by human rights treaty bodies.

The Committee has strongly urged the IRI as a matter of utmost priority to:

  • End the execution of children and persons who committed a crime under the age of 18;
  • Take legislative measures to abolish the death sentence for the crimes of hudud and qisas for persons who committed a crime under the age of 18 years in the Islamic Penal Code without leaving any discretion to the courts; and
  • Commute all existing sentences for offenders on death row who committed a crime under the age of 18 years.

 

Insight Iran had urged the Committee to consider the differences between ta’zir crimes on the one hand and hudud and qisas on the other hand. We had submitted that while corporal punishment and flogging of children for the ta’zir category has been abolished for children under the new IPC, the same has not taken place with regard to Hudud and Qisas.

The Committee has paid a careful attention to these differences and while welcoming the changes in the 2013 Islamic Penal Code, it “remains seriously concerned that the IPC retains the punishment of children who reached the legal age of criminal responsibility (9 lunar years for girls and 15 years for boys) for crimes under the categories of Hudud and Qisas with sentences involving torture or cruel, degrading treatment or punishment, which has been and continue to be applied to children.”

 

Insight Iran had submitted an alternative report to the UN Committee on the Rights of the Child in advance of the Committee’s review of the IRI’s Periodic Report. The submission examined the IRI’s criminal justice system when dealing with crimes committed by, and against, children. The executive summary of the Insight Iran’s submission can be downloaded here.

Insight Iran had also joined other leading human rights NGOs such as Amnesty International, Justice for Iran, Iran Human Rights, and Baha’i International Community and made a joint submission to the Committee. One of the most comprehensive of its kind, the joint submission covered various areas of concern with regard to the IRI’s commitments pursuant to the CRC. We also took part in the Committee’s pre-sessional meeting in June 2015 in Geneva, where the submissions were considered and prepared for the main session of the review of the IRI January this year. All the submissions can be found here.

Physical Chastisement of Children and Impunity for Fathers under Iranian Law


Physical Chastisement of Children and Impunity for Fathers

Physical Chastisement of Children and Impunity for Fathers under Iranian Law 

 

  1. Physical Chastisement at Home or School

Corporal punishment and other cruel or degrading forms of punishment can take place in many settings, including at home in the hands of parents or at school by teachers. Under the IRI’s Penal Code (IPC), physical punishment and corporal chastisement is not ruled out as a method of correcting children. In fact, parents, and guardians, of children are deemed responsible for correcting children and “if necessary” they are allowed to use corporal punishment. This must however be applied “moderately” and “expediently”. Article 49 of the old Penal Code provided that “[i]f, in order to correct child offenders, corporal chastisement is deemed necessary, it must be moderate and expedient”. Moreover, in order to remove any doubt about the lawfulness of such acts and to give assurance to parents, article 59 of the same law provided that “[t]he following acts shall not be considered an offence: 1- The acts committed by parents and legal guardians of minors and insane people in order to chastise or protect them provided that chastisement and protection are exercised within the customary limit. …”.

It does not seem that the new IPC has made any significant change to this rule although it adds “religious” limits to acceptable chastisement. Article 158, stipulates that committing a conduct which is considered by law as an offense, shall not be punished in the following cases:

“… (d) The acts committed by parents and legal guardians of minors and insane people in order to chastise or protect them provided that such actions are exercised within the customary and religious limits for chastisement and protection.”

The problem is that “moderate” and “customary” limits are too vague. They may wary from case to case and do not comply with international standards. Religious limits are not more helpful either. Therefore, for instance, slapping a child in the face may be considered as customarily acceptable if a child is rude to his or parents, and as long as it does not make the child’s face red or blue or does not cause bleeding it is within religious limits. Hitting the child in less sensitive areas or acts such as shaking or throwing the child or other painful and degrading punishments that do not cause redness of skin or any bruise or injury, are even more likely to comply with religious limits. Therefore, it would be true to say that the law does not comply with international standards set by the CRC:

First, the law, while imposing all sorts of inhuman and degrading punishments such as flogging and amputation of limbs as a punishment for certain crimes, permits some forms of corporal punishment against children in the hands of their parents and legal guardians. In fact, not only does the law permit some forms of corporal punishment, does it describe it as “necessary” in some occasions.

Second, it fails to protect children against those forms of corporal and degrading punishments that do not cause a qualified injury under Shari’a law. By adding “religious limits” to the new Penal Code–which was implied in the old IPC anyway­–the law does not move forward towards more protection for children, but falls deeper into Shari’a law that does not conform with the current needs of the society and children.

Third, the current limits on physical punishment of children by parents and legal guardians are effectively whatever they can get away with. This is because the law fails to provide any clear criteria for unlawful acts and leaves it to parents, and guardians, to use their own discretion. The law should have taken this area out of the hands of custom, religion, and individual discretions and ban all forms of physical violence against children.

School is another setting where children are subject to power and control by adults and are at risk of being exposed to violence by teachers and school authorities that may misuse their power over children. However, it must be noted that, under the IRI’s law, as far as corporal punishment is concerned, teachers do not enjoy the same favourable provisions provided for parents and legal guardians. Therefore, basically they have no right to impose any corporal punishment against children. They must follow the disciplinary rules of the school and any sanction against children must be in accordance with the rules and regulation. Otherwise, the teacher or school authorities will face disciplinary and/or criminal consequences. Having said that, this does not reflect the current practice and culture in schools in Iran. Although it must be admitted that the application of corporal punishment has been decreased over the last several decades, it still exists while every now and then some extreme cases take the attention of the public and media.

For example in 2012 a series of separate incidents in the schools of a small town near Kerman were reported by newspapers where students where violently beaten and injured by their teachers. [1] Such incidents, however, are not limited to small towns and villages and similar incidents happen in big cities like Tehran.[2] The frequency and high number of these incidents across the country show the widespread and intense nature of the problem. It is also worth mentioning that not only some parents may turn a blind eye on some minor incidents, even in more serious cases they may not pursue legal proceedings against teachers and school authorities either, as they may fear that it will have negative consequences for their children. In fact, in some cases, the victims and their parents have been forced by school authorities to give their forgiveness and drop the criminal cases, and they often do so.[3] In sum, although disciplinary regulations and criminal rules are in place in order to punish the perpetrators, it is clearly not sufficient and more drastic measures are needed to overcome the problem.

 

  1. Impunity for Fathers

According to Shi’a jurisprudence as reflected in the IPC, a father, and any male paternal ascendant (e.g. father’s father), cannot be put to death for killing his child (or grandchild). This rule does not apply to the mother and the ascendant (e.g. mother’s mother). Article 220 of the old IPC stipulated that “[a] father or grandfather that murders his child shall not be sentenced to qisas [retribution], but only to ta’zir punishment and diya [blood money] for murder to the heir of the victim.” It was seen my some commentators as an impunity for fathers and paternal grandfathers to kill their children and grandchildren without facing any serious sanction.

The new IPC has kept the same rule but put it differently. According to article 301 of the new IPC:

“Qisas shall be delivered only if the perpetrator is not the father, or a paternal grandfather, of the victim …”.

Cases in which fathers kill their own children are usually cases of honour killing or marital disputes between parents. For example, in May 2014, a father killed his 17 year old daughter in Kangavar. He told the police that he had been fed up with his daughter’s behaviour for some time. According to him, his daughter had been out of town with some friends including some boys when in return they were arrested by the police and handed over to their families. [4] In another case, it was reported a father had murdered his 3 and 6 year old children following a dispute with his wife. [5]

In such cases, the qisas punishment (the death penalty) cannot be delivered against the father and he may only be sentenced to between three to ten years of imprisonment for disturbing the public order, at the discretion of the judge. It must be explained that the critics of this provision do not seek the death penalty for the father, but they stress that the only alternative punishment available, which is based on disturbing the public order and left at the discretion of the judge, is insufficient and sends a wrong signal to fathers that they may get away with killing their children.

 

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Footnotes:

 

[1] Source: Daily Etemad, 25 October 2012, No 2528, p. 13.

[2] For example in December 2014, a 15 year old boy was hit violently, including in his genitals, by his teacher which resulted in his hospitalization. Source: ILNA News Agency, News No. 229070, 1st December 2014.

[3] In December 2014, a sixth grade student was hit by his teacher in the head that fractured his nose. He went under surgery and requires a further surgery when he reaches 16. His father claimed that he was threatened by the Principal of the school that should he pursue his criminal complaint his son would be dismissed from the school. Source: Khordad News Agency, News No. 111087, 27 December 2014, available at <http://khordadnews.ir/news/111087>.

[4] Daily Etemad, 29 May 2014, available at <http://www.magiran.com/npview.asp?ID=2959517>.

[5] Source: Fars News Agency, 2 January 2015, <http://www.farsnews.com/newstext.php?nn=13931012000750>.